Citation Nr: 1342083
Decision Date: 12/19/13 Archive Date: 12/31/13
DOCKET NO. 08-20 439 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to service connection for cervical spine degenerative disc disease with left C7 radiculopathy.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARINGS ON APPEAL
Appellant and his spouse
ATTORNEY FOR THE BOARD
J. Hager, Counsel
INTRODUCTION
The Veteran served on active duty from April 1979 to April 1982.
This matter initially came before the Board of Veterans' Appeals (Board) from a January 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In that decision, the RO denied entitlement to service connection for neck injury.
In December 2009, the Veteran and his spouse testified at a December 2009 hearing before a Decision Review Officer. In May 2011, the Veteran and his spouse testified at a Travel Board hearing before the undersigned Veterans Law Judge. Transcripts of each hearing are associated with the claims file.
In September 2011, the Board remanded the claim to the RO, via the Appeals Management Center.
FINDING OF FACT
The evidence is approximately evenly balanced as to whether cervical spine degenerative disc disease with left C7 radiculopathy is related to the Veteran's in-service neck injury.
CONCLUSION OF LAW
With reasonable doubt resolved in favor of the Veteran, cervical spine degenerative disc disease with left C7 radiculopathy was incurred in service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2013).
REASONS AND BASES FOR FINDING AND CONCLUSION
Service connection will be granted if the evidence demonstrates that a current disability resulted from an in-service injury. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence of an injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service injury. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
In this case, the Veteran has met the current disability requirement. On the March 2009 and November 2011 VA examinations, he was diagnosed with cervical spine degenerative disc disease. In addition, a December 2010 Advanced Neuroscience Clinic electromyelograph report contains a diagnosis of chronic left C7 radiculopathy. The Veteran has also met the in-service injury requirement. A June 1980 service treatment record reflects that the Veteran complained of a stiff neck after a collision while playing softball. The dispositive question in this case is therefore whether there is a relationship between the current cervical spine disability and the in-service neck injury. There are multiple medical opinions addressing this question.
The March 2009 VA examiner noted the Veteran's in-service neck injury and opined that in the absence of any pertinent history during the intervening 30 years due to the appellant's inability to recall a medical history due to illicit drug use, there was no objective basis to state that cervical degenerative disc disease was related to the in-service injury. Significantly, however, in a November 2010 VA outpatient treatment record, a VA physician opined that, "from the evidence seen and the [electromyelograph] results, the Veteran's neck pain "most probably derived from trauma suffered while in service."
In its September 2011 remand, the Board found the above evidence insufficient to decide the claim, as the November 2010 physician did not specify the evidence he had "seen" in making his determination. The Board therefore requested a clarifying opinion from the March 2009 VA examiner, whose opinion was inadequate because it was based on the premise that there was no objective basis for the conclusion that there was a nexus between the cervical disc disease and the in-service injury, when there was in fact evidence (subsequent to the March 2009 examination) that provided such an objective basis. The Board instructed that the March 2009 VA examiner, whom it termed a neurologist, be asked to specifically address the VA physician's November 2010 opinion. If the neurologist was unavailable, an equally qualified neurologist should be asked for an opinion.
As noted by the Veteran's representative in the November 2013 post remand brief, the November 2011 opinion obtained pursuant to the Board's remand was by a physician's assistant. The physician's assistant concluded that the current cervical spine disability was more likely related to aging and less likely related to the in-service injury, and cited the lack of complaints of neck pain or cervical abnormality at separation. The Veteran's representative requested another remand, for compliance with the Board's September 2011 remand instructions that an opinion be obtained from a neurologist.
The Board has considered the request for a remand, but finds that one is unnecessary because there is sufficient evidence to grant the claim. The three medical opinions discussed above each have flaws. The March 2009 opinion was based on an erroneous assumption that there was no medical evidence in support of a nexus, while subsequent medical evidence did in fact support such a nexus. The November 2010 opinion failed to specify all of the evidence on which it was based. The November 2011 opinion was not prepared by a neurologist, and it failed to specifically address the November 2010 opinion, as instructed by the Board.
Although flawed, each opinion contained some rationale and is therefore is entitled to some probative weight, with the qualifications of the health care professionals opining being a threshold consideration. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). While the cause of the appellant's cervical disorder may never be known with certainty, because there are positive and negative opinions on the question of nexus, which are of about equal probative weight, the Board finds that the evidence is approximately evenly balanced as to whether the current cervical spine disability is related to the in-service neck injury. The applicable law requires that the doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b). Entitlement to service connection for cervical spine degenerative disc disease with C7 radiculopathy is therefore warranted.
As the Board has granted the only claim being decided herein, discussion of VA's duties to notify and assist the Veteran is unnecessary.
ORDER
Entitlement to service connection for cervical spine degenerative disc disease with left C7 radiculopathy is granted.
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DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs